92 Decision Citation: BVA 92-07660
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-42 814 ) DATE
)
)
)
THE ISSUE
Waiver of recovery of loan guaranty indebtedness.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars
of the United States
ATTORNEY FOR THE BOARD
Thomas M. O'Driscoll, Associate counsel
INTRODUCTION
The appellant served on active duty from January 1968 to
August 1969.
On July 28, 1986, the appellant refinanced his home loan in
the amount of $72,500. The home loan was secured by a VA
home loan guaranty. On the date of settlement, the veteran
signed the veteran's certifications on VA Form 26-1820. The
effect of the refinancing was to reduce the appellant's
monthly payments of interest and principal from $807.53 to
$636.23. The settlement charges to the appellant were
$3,214.35. The VA loan guaranty was issued in the amount of
$27,500.
In a letter received on August 20, 1989, the appellant
requested that the VA approve a sale of the property
securing the guaranteed loan obligation which would result
in a default of $5,000 to the holder upon the sale. The
appellant requested that the VA pay the guaranty claim in
this amount to the holder of the VA loan guaranty and, in
consideration thereof, he would execute a promissory note to
pay his loan guaranty indebtedness in the amount of
$5,000.
The Lincoln, Nebraska VA Regional Office (VARO) approved the
sale and indicated that the claim on the default of $5,000
would be paid to the lender. The property was sold on May
15, 1989 for for $52,000.00. There was a default to the
holder in the amount of $5,000. On May 15, 1989 the
appellant and his spouse executed a promissory note to the
VA in the amount of $5000 accruing interest at 4 percent to
be paid in the amount of $112.90 monthly beginning August 1,
1989, until paid in full.
The holder's claim was received on October 4, 1990 and
approved for payment in the amount of $5,000 on October 26,
1990.
The appellant's request for waiver of the loan guaranty
indebtedness was received in February 1991. The Committee
on Waivers and Compromises at the Lincoln, Nebraska VARO
denied the appellant's request for waiver of recovery of the
debt on March 6, 1991 after application of the "equity and
good conscience" standard. 38 U.S.C.A. § 5302(b)(1992);
38 C.F.R. § 1.965.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from VARO's March 1991 decision. The
notice of disagreement was received on March 13, 1991. The
statement of the case was issued on April 15, 1991. The
appellant's substantive appeal was received on May 20,
1991. The appeal was received at the Board on September 13,
1991.
The appellant has been represented by the Veterans of
Foreign Wars of the United States, which organization
provided the Board with an informal hearing presentation
which was received on January 9, 1992.
REMAND
The appellant provided a Financial Status Report (VA Form
4-5655) to VARO in March 1991. In that report, the
appellant indicated that he was employed with the Nebraska
State Police and had a net take home pay of $1,853.32. The
Financial Status Report also indicated that the appellant
had a livestock business with $19,500 in stock and that he
anticipated that three unpaid debts in the amounts of
$13,345, $1,500 and $2,500 would be paid at the end of the
year. In his substantive appeal, the appellant reported
that he had been trying to sell his home for five years
prior to the default. He also stated that since he signed
the promissory note to the VA, he had left his job with the
state police. In August 1991, the appellant was requested
to complete a Financial Status Report. The VA Form 4-5655
was returned with information that the appellant left his
job with the state police in April 1991. He estimated his
monthly gross income as $1,000. Beyond this information,
the form was essentially incomplete. The appellant
indicated that certain debts associated with a grader that
he used in his earth moving business and the livestock would
be paid off in the fall of 1991 from anticipated income
which could not yet be accurately estimated. He also
indicated that his spouse was not currently employed and was
looking for work.
The Board is of the opinion that further development of the
evidence is necessary before a final decision concerning the
issue on appeal can be rendered.
Accordingly, the case is REMANDED for the following action:
The appellant should be requested to
complete, in full, another Financial
Status Report, reflecting all employment,
sources of income, expenses, assets,
debts, and payments. The appellant
should also be requested to furnish a
copy of his income tax return for 1991.
After the above development has been completed, VARO should
readjudicate the claim. If the waiver of recovery of
indebtedness sought on appeal is not granted, the appellant
and his representative should be given a supplemental
statement of the case with regard to the additional
development and be afforded an opportunity to respond. The
record should be returned to the Board for further appellate
consideration, if in order.
The purpose of this REMAND is to procure clarifying data and
to accord due process. The Board intimates no opinion as to
the ultimate conclusion warranted, pending completion of the
requested development. No action by the appellant or his
representative is required until further notice is received.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
BETTINA S. CALLAWAY MATTHEW J. GORMLEY, III
KENNETH R. ANDREWS, JR.
Under 38 U.S.C.A. § 7252 (1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.